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decided: March 22, 1988.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of General Accident Insurance Co. v. City of Philadelphia, No. 3623 January Term, 1987, dated April 21, 1987.


Anthony Bernard Quinn, for appellant.

Barbara R. Axelrod, Divisional Deputy in charge of Appeals, with her, Handsel B. Minyard, City Solicitor, and Norma S. Weaver, Deputy in charge of Claims, for appellee.

President Judge Crumlish, Jr., and Judges Barry and Colins, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 114 Pa. Commw. Page 529]

General Accident Insurance Company (General Accident) appeals a Philadelphia County Common Pleas Court order sustaining preliminary objections filed by the City of Philadelphia and dismissing its complaint with prejudice. We affirm.

This action originates from an automobile accident in which a car driven by General Accident's policyholder, Arthur Necci, was struck by an uninsured motorist at an intersection within the City of Philadelphia. General Accident paid Necci basic loss benefits and a collision claim, as well as uninsured motorist benefits. General Accident now seeks indemnification and/or contribution based on its allegation that the City is jointly or severally liable for negligently failing to replace a fallen stop sign at the intersection. In dismissing the complaint, the common pleas court determined that the City was protected from indemnification liability under Section 8553(d) of the Judicial Code*fn1 and was not liable for contribution because no City vehicle or employee was involved in the accident.

Our scope of review of a common pleas court order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error of law. Rok v. Flaherty, 106 Pa. Commonwealth Ct. 570, 527 A.2d 211 (1987).

General Accident asserts that the Judicial Code's immunity provision does not preclude contribution to an

[ 114 Pa. Commw. Page 530]

    insurer obligated to indemnify its insured for losses caused jointly by a municipality and an uninsured motorist. Specifically, General Accident contends that it stands in the shoes of the uninsured motorist, on whose behalf it paid uninsured motorist benefits to its policyholder. Hence, it claims entitlement to contribution from the City, under both the Uninsured Motorist Act*fn2 and the Uniform Contribution Among Tort-feasors Act.*fn3 We disagree.

Section 8553(d) of the Judicial Code provides:

(d) Insurance Benefits -- If a claimant receives or is entitled to receive benefits under a policy of insurance other than a life insurance policy as a result of losses for which damages are recoverable under subsection (c), the amount of such benefits shall be deducted from the amount of damages which would otherwise be recoverable by such claimant.

This section limits recovery by a claimant-insured where a collateral source of benefits exists; it requires that the claimant's insurance benefits be deducted from the damages for which the municipality would otherwise be liable. Gubernick v. City of Philadelphia, 85 Pa. Commonwealth Ct. 397, 481 A.2d 1255 (1984).

Despite its protestations to the contrary, General Accident is asserting its rights as a subrogee of its insured, Necci, and as such stands in his shoes with respect to his rights and injuries. See Michel v. City of Bethlehem, 84 Pa. Commonwealth Ct. 43, 478 A.2d 164 (1984). Because Necci's claim was apparently satisfied by General Accident, he has no remaining claim against the City of Philadelphia and, consequently, there is no

[ 114 Pa. Commw. Page 531]

    claim to which General Accident can be subrogated. General Accident's argument that it is entitled to contribution from the City as a joint tort-feasor is without merit for the same reason. As a subrogee, General Accident may only pursue the interests of its insured, not the interests of the uninsured motorist.*fn4 This is true despite the fact that it was the uninsured motorist's involvement in the accident that caused General Accident to be obligated to pay benefits.*fn5

[ 114 Pa. Commw. Page 532]

Accordingly, the order of the trial court is affirmed.


The order of the Philadelphia County Common Pleas Court, No. 3623 dated April 21, 1987, is affirmed.



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